Communication Workers Union and Others v Telkom SA Ltd and Others (J1758/05) [2008] ZALC 210 (1 January 2008)

Communication Workers Union and Others v Telkom SA Ltd and Others (J1758/05) [2008] ZALC 210 (1 January 2008)

The Commissioner’s refusal to reinstate the Individual Applicants was irrational and based on irrelevant considerations. Section 193(2) of the LRA mandates reinstatement unless specific statutory exceptions are present, none of which were considered or proven. The Commissioner’s reliance on factors such as the applicants’ conduct during arbitration and delay in proceedings was misplaced and constitutes a reviewable irregularity. The evidentiary burden to show impracticability of reinstatement rests on the employer, and Telkom failed to discharge this burden. The award of only one month’s compensation was similarly flawed, as the factors relied upon were irrelevant to the determination of...

Citation
[2008] ZALC 210
Parties
Applicant: Communication Workers Union (CWU); Applicant: Z Dladlama & 6 Others; Respondent: Telkom SA Limited; Respondent: E Tlholhalemaje; Respondent: Commission for Conciliation, Mediation & Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 January 2008
Case Number
J1758/05
Procedural Posture
Review Application / Unopposed Review of Arbitration Award Under Section 145 of the Labour Relations Act
Outcome
The arbitration award is reviewed and set aside in respect of reinstatement and compensation. The Individual Applicants are reinstated retrospectively with 12 months’ back-pay.
Judges
Basson
Legal Topics
Unfair Dismissal, Reinstatement, Compensation Quantum, Progressive Discipline, Arbitration Review, Section 193 2 Lra
Labour Law Unfair Dismissal Reinstatement Compensation Quantum Progressive Discipline Arbitration Review Section 193 2 Lra

Case Brief

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Parties

Communication Workers Union (CWU)

Applicant

Z Dladlama & 6 Others

Applicant

Telkom SA Limited

Respondent

E Tlholhalemaje

Respondent

Commission for Conciliation, Mediation & Arbitration

Respondent

Procedural Posture

Review Application / Unopposed Review of Arbitration Award Under Section 145 of the Labour Relations Act

Legal Issues

  1. 1 Whether the Commissioner erred in refusing reinstatement of the Individual Applicants after finding their dismissals substantively unfair.
  2. 2 Whether the Commissioner applied irrelevant considerations in awarding only one month’s compensation.
  3. 3 Whether the arbitration award should be reviewed and set aside in respect of reinstatement and compensation.

Ratio Decidendi

The Commissioner’s refusal to reinstate the Individual Applicants was irrational and based on irrelevant considerations. Section 193(2) of the LRA mandates reinstatement unless specific statutory exceptions are present, none of which were considered or proven. The Commissioner’s reliance on factors such as the applicants’ conduct during arbitration and delay in proceedings was misplaced and constitutes a reviewable irregularity. The evidentiary burden to show impracticability of reinstatement rests on the employer, and Telkom failed to discharge this burden. The award of only one month’s compensation was similarly flawed, as the factors relied upon were irrelevant to the determination of...

Court Disposition

The arbitration award is reviewed and set aside in respect of reinstatement and compensation. The Individual Applicants are reinstated retrospectively with 12 months’ back-pay.

Orders

  • The arbitration award issued by the Second Respondent on 17 June 2005 is reviewed and set aside only in respect of findings on reinstatement and compensation.
  • The award is substituted with an order that the Individual Applicants are reinstated retrospectively into their previous employment with the First Respondent.